1 2026:CGHC:15780-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1371 of 2025 Mukesh Lautre @ Mukku @ Monu S/o Ramesh Lautre Aged About 24 Years R/o Adarsh Nagar, Sirgitti, Bilaspur, District- Bilaspur Chhattisgarh. --- Appellant versus State Of Chhattisgarh Through - Station House Officer, Police Station Sirgitti District- Bilaspur (C.G.) --- Respondent For Appellant : Mr. Y.C. Sharma, Senior Advocate along with Mr. Ajay Kumar Chandra, Advocate For Respondent/State : Mr. Priyank Rathi, Govt. Advocate CRA No. 1858 of 2025 Jay Kumar @ Ajju S/o Krishna Kumar Yadav Aged About 23 Years R/o Sardar Mohalla, Sirgitti, Bilaspur, District : Bilaspur, Chhattisgarh ---Appellant Versus State Of Chhattisgarh Through The District Magistrate Bilaspur (C.G.) --- Respondent For Appellant : Mr. Raj Kumar Gupta, Advocate For Respondent/State : Mr. Priyank Rathi, Govt. Advocate VED PRAKASH DEWANGAN Digitally signed by VED PRAKASH DEWANGAN Date: 2026.04.13 19:42:42 +0530 2 CRA No. 1528 of 2025 Abhishek Lal @ Lucky S/o Ajay Lal Aged About 23 Years R/o Durga Bada, Govind Nagar, Police Station Sirgitti Bilaspur, District- Bilaspur (C.G.) ---Appellant Versus State Of Chhattisgarh Through The Station House Officer Sirgitti District- Bilaspur (C.G.) --- Respondent For Appellant : Mr. Mohit Kumar, Advocate For Respondent/State : Mr. Priyank Rathi, Govt. Advocate CRA No. 1714 of 2025 Abhjeet Lal @ Vikku S/o Ajay Lal Aged About 21 Years R/o Durga Bada, Govind Nagar, Police Station Sirgitti, Bilaspur, District : Bilaspur, Chhattisgarh ---Appellant Versus State Of Chhattisgarh Through The Station House Officer Sirgitti, District : Bilaspur, Chhattisgarh --- Respondent For Appellant : Mr. Mohit Kumar, Advocate For Respondent/State : Mr. Priyank Rathi, Govt. Advocate CRA No. 2098 of 2025 1 - Kishan Tanti @ Laalu @ Kunal S/o Late Vanshilal Tanti Aged About 21 Years R/o Sardar Mohalla, Sirgitti, District : Bilaspur, Chhattisgarh 2 - Lucky Naidu @ Khebda Lucky S/o Ramdani Naidu Aged About 19 Years R/o Mahima Nagar, Sirgitti, District : Bilaspur, Chhattisgarh ---Appellants Versus 3 State Of Chhattisgarh Through Station House Officer, Police Station Sirgitti, District : Bilaspur, Chhattisgarh --- Respondent (Cause title taken from Case Information System) For Appellant : Mr. Sachin Nidhi, Advocate For Respondent/State : Mr. Priyank Rathi, Govt. Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 07/04/2026 1. All these criminal appeals are arising out of the same crime number, same sessions trial and common judgment, therefore, they are being heard and decided together. 2. The CRA No. 1371 of 2025 has been filed by the appellant Mukesh Lautre @ Mukku @ Monu, the CRA No. 1528 of 2025 has been filed by the appellant Abhishek Lal @ Lucky, the CRA No. 1714 of 2025 has been filed by the appellant Abhijeet Lal @ Vikku, the CRA No. 1858 of 2025 has been filed by the appellant Jay Kumar @ Ajju and the CRA No. 2098 of 2025 has been filed by the appellant Kishan Tanti @ Laalu @ Kunal and Lucky Naidu @ Khebda Lucky. All these appeals are filed by the respective appellants against the impugned judgment of conviction and sentence dated 25.06.2025, passed by learned 9th Additional Sessions Judge, Bilaspur, in Sessions Case No. 63 of 2020, arising out of Crime No. 229 of 2020, registered at Police Station 4 Sirgitti Bilaspur, whereby the appellants have been convicted and sentenced in the following manner: CONVICTION SENTENCE Section 148/149 IPC 03 years Rigorous Imprisonment (R.I.) Section 342/149 IPC (Twice) 01 year R.I. each for deceased Yuvraj and injured Akash (Separate) Section 323/149 IPC 01 year R.I. Section 302/149 IPC Life Imprisonment + ₹2,000 fine (In default: 01 year R.I.) Section 396/149 IPC Life Imprisonment + ₹2,000 fine (In default: 01 year R.I.) Section 201/149 IPC 07 years R.I. + ₹2,000 fine (In default: 01 year R.I.) Section 506 Part-II IPC (Twice) 05 years R.I. each for deceased Yuvraj and injured Akash (Separate) All the sentences are directed to run concurrently. 3. The case of the prosecution, in brief, is that, in the intervening period of 26.05.2020, 14:30 hrs. and 27.05.2020, 7:00 hrs., the accused persons formed unlawful assembly at Adarsh Nagar, Sirgitti and in furtherance thereof abused, illegally confined and threatened with dire consequences to the deceased Yuvraj Khare and injured Akash Banjare and assaulted them by wooden plank, hockey stick, clutch wire and bamboo club and has committed murder of the deceased Yuvraj Khare. They also committed dacoity of Rs. 1000/- from the injured Akash and in order to conceal the offence, they took the dead 5 body of deceased Yuvraj by a Maestro two-wheeler vehicle and threw the dead body near Ghumra Murum Khadan, Village Dhamni. 4. On 27.05.2020, the injured Akash Banjare lodged a report to the police that on 26.05.2020, at about 1:00 p.m. he and his cousin brother Yuvraj Khare had gone to the house of accused Vicky and demanded their borrowed amount, but he died not repay it rather he gave them Rs. 100/- and asked to brought snacks for drinking liquor and called them near water tank at an under construction house. He also assured them that, Lucky and other persons were also present there and he too is coming there. When they reached at the under construction house, they found the accused Monu @ Mukesh, Lucky, Khebda Lucky, Jay and his other friends were present. They also joined them and started drinking liquor along with them. 5. During this, there was some hot talk between Yuvraj and Monu @ Mukesh. Thereafter, the accused persons who were present there, started marpeet with Yuvraj. They tied the hands of Yuvraj and Akash and tied their mouth by Gamchha. They continuously assaulted them by wooden plank, hockey stick, clutch wire, bamboo club, brick piece and kicks. They also looted Rs. 1000/- from the injured Akash Banjare and the accused Mukesh. Harish, Kishan and Vicky left them to their house by the Maestro vehicle of Yuvraj. On 27.05.2020, at about 7:00 a.m. the injured Akash came to know that Yuvraj has died and then he lodged the report against the accused persons. On the report of Akash Banjare, the FIR (exhibit P-46) of Crime No. 229 of 2020 has been registered against Monu @ Mukesh, Lucky, Vicky, Khebda Lucky, Jay 6 and his other friends for the offence under Sections 342, 323, 294, 393, 394, 302, 147, 148 and 149 of IPC. 6. During the investigation, one Manish Sharma (PW-16), Sarpanch of the village Dhamni gave a merg intimation (exhibit P-44) to the police that a dead body is lying there at Ghumrao Murum Khadan in injured condition and his Maestro vehicle and a carry bag is also lying there. On being inquiry, the Chowkidar Bahoran informed him that 2-3 persons thrown the dead body and ran away towards village Nagpura. Police reached there and prepared inquest (exhibit P-2) in presence of the witnesses. The dead body was identified by Riddhram Banjare, who was relative of the deceased and identification panchnama (exhibit P-3) was prepared. The dead body was sent for its postmortem to Community Health Centre, Bilha, where Dr. Nikita Kanwar (PW-20) conducted the postmortem of the dead body and gave the postmortem report (exhibit P-48). While conducting the postmortem, the doctor noticed multiple bruises on right side of forehead, over right and left eyes, both cheeks, which were variable size, triangular and quadrangle, over nasal bridge, oval in shape, multiple contusions on right side of neck variable size and length, multiple contusions on whole chest, abdomen and both legs, both hands and whole back. The doctor opined that cause of death is cardio-respiratory arrest due to multiple blunt injuries and syncope. 7. Th injured Akash Banjare (PW-17) was also sent for his medical examination to District Hospital, Bilaspur where he was medically examined by Dr. P.C. Banerjee (PW-13), who gave the MLC report 7 (exhibit P-38). While medically examining the injured, the doctor has noticed the following injuries in his body. * Contusion with redness- on back. * Contusion with redness- left buttock (upper ½). * Contusion with redness- right buttock (upper ½). * Contusion with redness- left arm. * Contusion with redness- right arm. * Contusion with redness- upper ½ of left arm. * Contusion with redness- upper ½ of right arm. * Contusion with redness- right chest. * Contusion with redness- left thigh. * Contusion with redness- right thigh. * Contusion with redness- left cheek. All injuries were simple in nature caused by hard and blunt object. 8. The nature of death to be investigated by the police and it may be homicidal. One DVR of CCTV footage of the spot has been seized vide seizure memo (exhibit P-4), in which the accused persons were seen to be carrying the dead body in the two-wheeler vehicle. A certificate under Section 65-B of Evidence Act (exhibit P-5) with respect to the authenticity of the CCTV footage was also obtained from Girish Kumar Sahu (PW-4). One pen drive of CCTV footage has also been seized from Manish Vishwakarma vide seizure memo (exhibit P-6) and the certificate under Section 65 of the Evidence Act (exhibit P-7) has also been obtained. The Maestro vehicle bearing registration No. CG 10 AB 6605 with keys and one carry bag contained with shirt and pant have 8 been seized from the spot and two items of Nano SIM cards have been seized from the pocket of the pant of the deceased vide seizure memo (exhibit P-8). The spot panchnama (exhibit P-9 and P-10) have been prepared by the police in presence of the witnesses. Spot map (exhibit P-47, P-58 and P-65) were prepared by the police. 9. The accused persons were arrested on 27.05.2020 and the memorandum statement of Abhishek Lal @ Lucky (exhibit P-12), Harish Chouhan (exhibit P-13), Kishan Tanti @ Laalu @ Kunal (exhibit P-14), Mukesh Lautre @ Monu @ Mukku (exhibit P-15), Abhijeet Lal @ Vikku @ Vicky (exhibit P-16), Sumit Upvanshi @ Lepard (exhibit P- 17), Joy Lauka (exhibit P-18), Jay @ Ajju Yadav (exhibit P-19) were recorded. 10. From the accused Sumit Upvanshi, one wooden plank and clutch wire have been seized vide seizure memo (exhibit P-20), from Jay @ Ajju Yadav, one wooden plank and clutch wire have been seized vide seizure memo (exhibit P-21), from the accused Abhijeet Lal @ Vikku @ Vicky, one club, one belt and one mobile phone have been seized vide seizure memo (exhibit P-22), from the accused Harish Chouhan, one mobile phone and one wooden plank have been seized vide seizure memo (exhibit P-23), from the accused Mukesh Lautre, one mobile phone, one Royal Enfield motorcycle and Rs. 530/- cash have been seized vide seizure memo (exhibit P-24) and one belt, one chappel, one wooden plank, broken piece of hockey stick, broken piece of belt, gamchha, shirt, empty liquor bottles, disposal glass and chillum have been seized from the spot on the instance of the accused Mukesh Lautre vide seizure memo (exhibit P-25). From Jay Lauka, 9 one wooden plank and clutch wire have been seized vide seizure memo (exhibit P-26), from Abhishek Lal @ Lucky, one belt and one bamboo plank have been seized vide seizure memo (exhibit P-27), from accused Kishan Tanti @ Laalu, one belt has been seized vide seizure memo (exhibit P-28). The seized articles were sent for its query report to the doctor, who gave his query report (exhibit P-40) and opined that the injuries found on the body of injured Akash Banjare could have been caused by the said weapons. One unclaimed Aviator two-wheelers vehicle bearing registration No. CG 10 EC 3708 with keys have been seized from jungle area vide seizure memo (exhibit P- 46). The seized weapon were also sent for its query report to the doctor, who conducted the postmortem of the dead body of the deceased, who gave the query report (exhibit P-49) and opined that the death may be possible by the sent objects, the nature of death may be homicidal. 11. Another CCTV footage in the DVR has been seized from Arjun Xaxa (exhibit P-36) and the certificate (exhibit P-37) was also obtained from Arjun Pratap Xaxa (PW-10). The accused persons were put to test identification parade, which was conducted by the Executive Magistrate, Bilaspur at Juvenile Remand Home, Sarkanda, Bilaspur and the witnesses have duly identified the accused persons in the TIP and the TIP memo (exhibit P-42, P-43) have been prepared. 12. Statement of the witnesses under Section 161 of the CRPC have been recorded and after completion of usual investigation, charge sheet was filed against six arrested accused persons, one absconding accused Lucky Naidu before the learned Chief Judicial Magistrate, Bilaspur and 10 against two juveniles in conflict with law before the learned Juvenile Justice Board. The permanent warrant of arrest against the absconding accused Lucky Naidu @ Lucky Khebda was issued by the Judicial Magistrate First Class, Bilaspur vide order dated 07.09.2020, however pursuant to the permanent arrest warrant issued against him, he was arrested and produced before the learned Judicial Magistrate First Class, Bilaspur on 18.09.2020 and a supplementary charge sheet has been filed against him. The case was committed to the learned Sessions Judge, Bilaspur vide order dated 12.10.2020 and subsequently the case was transferred to the learned trial Court for its trial. 13. The learned trial Court framed charges against all the accused persons for the offence under Sections 148, 294, 506 Part-II, 342/149, 323/149, 302 read with Sections 149, 396 read with Sections 397 and 201 read with Section 149 of the IPC. The accused persons denied the charge and claimed trial. 14. In order to prove the charges against the accused persons, the prosecution examined as many as 23 witnesses. The statement under Section 313 of CRPC of the accused persons have also been recorded, in which they denied the circumstances, that appears against them, pleaded innocence and have submitted that, they have been falsely implicated in the offence. 15. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the accused persons 11 and sentenced them as mentioned in the earlier part of this judgment. Hence these appeals by the respective appellants. 16. Learned counsel appearing for the respective appellants would jointly submit that, the allegation against all the accused persons are almost common. There is no eyewitness to the incident and the injured witness Akash Banjare has not fully supported the prosecution’s case and his evidence suffers from inconsistencies and material discrepancies. The witnesses to the memorandum and seizure of weapons of offence from the accused persons have not supported the prosecution’s case and have turned hostile. There is no exact cause of death that the deceased died due to the injuries and the doctor has opined that the death of the deceased may be homicidal. They would further submit that there is substantial difference in “may be” and “shall be”. The prosecution has to prove beyond reasonable doubt that the death of the deceased was homicidal in nature. The test identification parade was neither conducted in accordance with law, nor has been proved by the prosecution under its requirement to prove. The co- accused Harish Chouhan has been acquitted by the learned trial Court on the same set of evidence and the appellants are also entitled for the same relief as has been granted to him. They would further submit that there is material omissions and contradictions in the evidence of prosecution witnesses, which cannot be made basis to convict the appellants for the offence in question. The prosecution has failed to prove its case beyond reasonable doubt. 17. In alternative, they would further submit that the alleged incident is occurred in a heat of passion during drinking liquor by them and on a 12 trivial issue. No traditional weapon were issued by the accused persons in commission of the offence. The act of the accused persons, if it is found proved, does not travel beyond the scope of Section 304 of IPC and the conviction of the appellants is liable to be modified under Section 304 Part-I or Part-II of IPC and their sentence may be reduced for the period already undergone by them, as the accused persons are in jail since 27.05.2020 and Lucky Naidu @ Khebda Lucky since 18.09.2020. 18. Per contra, learned counsel appearing for the State opposes the submissions made by learned counsel for respective appellants in all these appeals and submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omissions or contradictions, their evidence are fully reliable and sufficient to hold guilty of the appellants for the offence in question. The evidence of injured witness Akash Banjare (PW-17) is the crucial piece of evidence. He duly supported the prosecution’s case and involvement of the accused persons in the offence in question. He detailed in his evidence about the manner in which the offence is committed by the accused persons. The accused persons have been named in the FIR, which has been promptly lodged by the injured Akash Banjare. Further, the test identification parade, the memorandum and seizure of the weapon of offence have also been proved by the prosecution witnesses. The number of injuries found on the body of the deceased as well as the injured, clearly demonstrates that the deceased was intentionally murdered by the accused persons. He would further submit that brutally assaulting the deceased and injured cannot be said to be the 13 incident occurred in a heat of passion and therefore, there is no merit in the submissions made by learned counsel for the respective appellants and their appeals are liable to be dismissed. 19. We have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 20. With respect to the homicidal death of the deceased, Manish Sharma (PW-16) lodged the merg report that dead body is lying near Ghumra Talab having injuries over it. Thereafter the unnumbered merg intimation (exhibit P-44) was registered and it was identified by the witnesses to be the dead body of deceased Yuvraj Khare. Inquest (exhibit P-2) was prepared and then the dead body was sent for its postmortem. In the inquest also, the injuries over the dead body have been noticed by the witnesses. The eyewitness Akash Banjare (PW- 17) the assault made by the accused persons upon the deceased has been proved. 21. Dr. Nikita Kanwar (PW-20), who conducted the postmortem of the dead body of the deceased has stated in her evidence that, on 27.05.2020, she conducted the postmortem of the dead body of the deceased and noticed multiple bruises on right side of forehead, over right and left eyes, both cheeks, which were variable size, triangular and quadrangle, over nasal bridge, oval in shape, multiple contusions on right side of neck variable size and length, multiple contusions on whole chest, abdomen and both legs, both hands and whole back. The doctor opined that cause of death is cardio-respiratory arrest due to 14 multiple blunt injuries and syncope and gave her postmortem (exhibit P-48). In the query report (exhibit P-49) the doctor has also opined that the nature of death may be homicidal. In cross-examination, the defence could not be able to extract any material, so that the evidence of the doctor could be disbelieved or the death of the deceased could be considered otherwise. From the evidence of the witnesses, injuries found on the dead body of the deceased, its postmortem report, the learned trial Court found that the death of the deceased was homicidal in nature, in which we also concur with the finding record recorded by the learned trial Court and affirmed that the death of the deceased was homicidal. 22. So far as the involvement of the appellants/accused persons in the offence in question is concerned, the case of the prosecution is based on eyewitnesses. PW-17, Akash Banjare is the injured eyewitness. He stated in his evidence that on the date of incident he along with his brother Yuvraj had gone to the house of Vicky for taking back his borrowed amount. Vicky did not repay the borrowed amount, but he gave them Rs. 100/- and asked to come near water tank with snacks and also informed that other friends were also present there. When they reached near water tank at an under construction house, Lucky, Khebda Lucky, Mukesh and Jay were also there and at the same time, Vicky also came. When Yuvraj asked for refund of his amount, Vicky challenged him and demanded Rs. 25-30 thousands. On that issue, altercation started. Vicky supplemented that Yuvraj had earlier told that he will kill Mukku by gun. On the said issue the altercation culminated into marpeet and while drinking liquor they assaulted them up to 10:30 15 in the night. When he assured that, he will pay the amount, they took him to his house by Maestro vehicle and asked him not to disclose the incident to anyone, otherwise all of them would be killed. His mother paid them Rs. 500/- and then they went back. After sometime Vicky made a mobile call in the mobile phone of his brother Vikas and informed that Yuvraj was being taken by branch persons, who are acquainted with Mukku. Thereafter the mother of Yuvraj gave Rs. 3000/- to Mukku and then they went back for releasing Yuvraj from branch persons. In the morning, Mukesh informed his family members that Yuvraj is not found, the accused persons threatened him that if he disclosed their name, they will kill them. When he was being convinced by police person, he lodged the report, which is exhibit P-46. When the leading questions were asked, he stated the entire evidence and the manner in which, the offence has ben committed by the accused persons and also the identification of them. In his detailed cross- examination, the defence could not be able to impeach the credibility of this witness, who is also the victim of the said offence and received injuries by the marpeet committed by the accused persons. He has named all the accused persons who committed marpeet with him as well as the deceased Yuvraj. 23. In the FIR lodged by him (exhibit P-48), the name of Monu, Lucky, Vicky, Khebda Lucky, Jay and his other friends have been mentioned. Further, the accused persons have been identified by this witness in the test identification parade. In the TIP (exhibit P-46) conducted by the Executive Magistrate on 16.06.2020, the accused persons Abhishek Lal, Jay Kumar @ Ajju, Harish Chouhan, Abhijeet Lal, 16 Mukesh Lautre and Kishan Tanti have been duly identified by this witness Akash Banjare (PW-17). We found no any infirmity or discrepancy in his evidence, but for minor or trivial contradictions, which does not affect the substantial allegation of the incident against the accused persons. 24. PW-8, Vijay Giri Goswami and PW-9, Dina Prasad Sahu are the witnesses to the memorandum and seizure from the accused persons, though they have turned hostile, but they admitted their signatures and the documents. PW-11, Pushpa Khare is the mother of the deceased Yuvraj, she stated in her evidence that, at about 12:00 in the night, her sister Rukhmani made a telephonic call to her and informed that Akash came back to house and whether Yuvraj came back or not and also informed that Akash is having injuries. When she had gone to the house of Rukhmani, four accused persons Abhijeet Lal, Kishan Tanti, Harish Chouhan and Mukesh Lautre came to her house and demanded Rs. 20,000/- and other ID documents and informed that Yuvraj is being taken by crime branch police in Narcotics case and he will get him released. Since, he was not having sufficient money, she gave Rs. 3000/- to them. Up to 8:00 a.m. when they have not received any information, they proceeded to police station and then Akash disclosed in the police station that the accused Abhijeet Lal, Kishan Tanti, Harish Chouhan and Mukesh Lautre brutally assaulted him and committed murder of Yuvraj. In cross-examination, the involvement of the aforesaid four accused persons could not be impeached by the defence, though she is not the eyewitness to the incident, but she witnessed that in the night, four accused persons came to the house of 17 her sister Rukhmani and she gave them Rs. 3000/- to get her son released from the police. 25. PW-12, Rukhmani has also supported the evidence of PW-11 that in the night, Vicky, Mukesh Rautre, Abhishek Lal and Kishan Tanti came to her house and she gave them Rs. 500/-. When they went back, she called her sister Pushpa (PW-11). Vicky informed in he mobile phone of Vikash that Yuvraj is being arrested by crime branch and after sometime all the four accused persons Vicky, Mukesh Rautre, Abhishek Lal and Kishan Tanti again came and demanded Rs. 20,000/- to get Yuvraj released from the police and then they gave them Rs. 3000/-. Akash disclosed about the incident that the accused persons brutally assaulted them. From her evidence also, the involvement of the appellants in the offence in question has been proved. But for minor omissions or contradictions, her evidence is reliable in support of other evidence available on record. 26. PW-15, Smt. Prakriti Dhruv is the Executive Magistrate, who conducted the TIP and prepared the TIP memo (exhibit P-42 and P-43). The injured Akash Banjare identified two juveniles in conflict with law and their TIP memo (exhibit P-42) was prepared and the other accused persons have been identified and TIP memo (exhibit P-43) was prepared. In her cross-examination, the deceased put the question about the sequence and order in which they were standing at the time of TIP, but that has been properly answered by this witness. The involvement of the appellants in the offence in question has also been proved by their TIP. 18 27. PW-22, U.N. Shant Kumar Sahu and PW-23, Sukhnandan Patel are the investigating officers, who proved their part of the investigation, which they conducted. 28. From the aforesaid evidence, the involvement of the appellants in the offence in question have been proved that on the date of incident, they committed marpeet with the deceased Yuvraj and injured Akash Banjare. 29. The next question for consideration is whether the case of the appellants is covered with Exception-IV to Section 300 of the IPC vis- a-vis culpable homicide not amounting to murder and their conviction can be altered to Section 304 Part-I or Part-II of the IPC, as submitted by learned counsel for the respective appellants. 30. The Hon’ble Supreme Court in the matter of Sukhbir Singh v. State of Haryana, 2002 (3) SCC 327 observed as under:- “21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhbir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) IPC. The 19 finding of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.” 31. The Hon’ble Supreme Court in the matter of Gurmukh Singh v. State of Haryana, 2009 (15) SCC 635, laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II of the IPC, which state as under :- “23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen for its special perspective. The relevant factors are as under : (a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; 20 (c) The intention/knowledge of the accused while inflicting the blow or injury; (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury; (f) The age and general health condition of the accused; (g) Whether the injury was caused without premeditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (i) The criminal background and adverse history of the accused; (j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; (k) Number of other criminal cases pending against the accused; (l) Incident occurred within the family 21 members or close relations; (m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. 24. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.” 32. Likewise, in the matter of State Vs. Sanjeev Nanda, 2012 (8) SCC 450, the Hon’ble Supreme Court has held that once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 22 10 years or with fine or with both. It has further been held that to make out an offence punishable under Section 304 Part II of the IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death. 33. Further, the Hon’ble Supreme Court in the matter of Arjun Vs. State of Chhattisgarh, 2017 (3) SCC 247, has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :- “20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under :(SCC p. 220, para 7) “7. To invoke this exception four requirements must be satisfied, namely, (I) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor its I relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must 23 have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.” 21. Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under : “9. .... '18. The help of exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 24 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”. 34. In the matter of Arjun (supra), the Supreme Court has held that if there is intent and knowledge, the same would be case of Section 304 Part-I of the IPC and if it is only a case of knowledge and not the intention to 25 cause murder and bodily injury, then same would be a case of Section 304 Part-II of the IPC. 35. Further, the Hon’ble Supreme Court in the matter of Rambir Vs. State (NCT of Delhi), 2019 (6) SCC 122, has laid down four ingredients to bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under: “16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required: (i) There must be a sudden fight; (ii) There was no premeditation; (iii) he act was committed in a heat of passion; and (iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.” 36. Reverting to the facts of the present case, it is quite vivid that before the incident, the deceased Yuvraj and injured Akash had gone to house of Vicky for refund of his borrowed amount. Vicky instead of repay their amount, gave them Rs. 100/- and asked to near water tank with snacks, who that they may enjoy liquor. During drinking of liquor there some altercation took place, which culminated into marpeet by the accused persons to the deceased Yuvraj and injured Akash. The allegation of assault made by hand and fists, wooden plank, hockey stick and clutch wire, the accused persons have not used any sharp edged or any deadly weapon. It further transpires that during their 26 drinking liquor, the incident took place. The appellants were not aimed or targeted to kill the deceased and called him there and they were not having any intention to cause death of the deceased, but by causing such injuries, they must have had the knowledge that such injuries inflicted by them would likely to cause death of the deceased and as such the case would fall within the purview of Exception-IV of Section 300 of the IPC, as the act of the appellants herein completely satisfies the four necessary ingredients of Exception-IV to Section 300 of the IPC i.e. there must be a sudden fight, there was no premeditation, the act was committed in a heat of passion and the appellants have not taken any undue advantage or acted in a cruel or unusual manner. 37. Considering the law laid down by the Hon'ble Supreme Court in the aforesaid cases, considering the evidence of injured eyewitness, Akash (PW-17), the ends of justice would meet, if the conviction of the appellants under Section 302 of the IPC is altered/converted to one under Section 304 Part-I of the IPC. 38. So far as the conviction of the appellants under Section 148/149 of the IPC is concerned, it has been established by the prosecution that the accused persons, who were more than 5 in numbers committed marpeet with the deceased Yuvraj and injured Akash. Though initially they were drinking liquor, but during that when the altercation started, they started marpeet with the deceased and then the purpose of their assembly would turn into unlawful assembly and all of them assaulted the deceased Yuvraj and injured Akash. While assaulting the deceased and the injured, they shared common object and in furtherance thereof, they assaulted them. The appellants were the member of 27 unlawful assembly and thus, the conviction of the appellants for the offence under Section 148/149 of IPC is also justified. 39. So far as the offence under Section 342/149 of IPC is concerned, from the evidence of injured Akash (PW-17) and Pushpa (PW-11) and Rukhmani (PW-12), the prosecution has also able to prove that the injured Akash and deceased Yuvraj were illegally detained by the accused persons while committing marpeet and thus, there is no scope for interference in the conviction of the appellants for the offence under Section 342/149 of the IPC. 40. So far as the conviction of the appellants for the offence under Section 323/149 is concerned, injured Akash (PW-17) duly proved the injuries caused by the accused persons/appellants. In his evidence, he detailed the names of the accused persons and the manner in which he was being assaulted by them. The injuries found on the body of injured Akash has been proved by the Dr. P.C. Banerjee (PW-13), who gave his MLC report (exhibit P-38). The doctor, who medically examined the injured Akash found numerous contusions in all parts of the body of the injured Akash, which were simple in nature. When it has been established that, the appellants caused injuries to the injured Akash by hard and blunt object and the injuries have been proved by the doctor, there is no doubt in conviction of the appellants for the offence under Section 323/149 of the IPC and hereby it has also been affirmed. 41. The appellants have also convicted for the offence under Section 396/149 of the IPC. It is alleged that the appellants along with the 28 juveniles in conflict with law assaulted the injured Akash and looted Rs. 1000/- from him and thereby they committed the offence of dacoity and committed murder of Yuvraj. The appellants have been charged for the offence under Section 396/397 of the IPC. From the evidence of injured Akash (PW-17), when he was being asked the leading question by the prosecution, he stated that the accused persons looted Rs. 1000/- from him. In cross-examination, he deposed about the money transaction between them and the accused persons, there is no specific evidence that who has taken Rs. 1000/- from his pocket. He made omnibus allegation that the accused persons looted Rs. 1000/- from his pocket. The manner in which the offence is said to have been committed, the relation between the deceased, injured witness and the accused persons, the genesis of the alleged incident and the reason behind the genesis of the offence all would clearly demonstrate that the incident occurred on the issue of money transaction. Merely stating that the accused persons looted Rs. 1000/- would not be sufficient to hold the appellants guilty for the offence under Section 396 of the IPC, though an amount of Rs. 530/- has been seized from the accused Mukesh Lautre, but it was the amount, which has been looted from the injured Akash, has not been proved by the prosecution. In absence of any specific evidence with respect to loot of Rs. 1000/- cash from the injured Akash, the appellants cannot be held guilty for the said offence of Section 396/149 of the IPC. 42. Further, the evidence with respect to causing disappearance of the evidence of offence produced by the prosecution is not sufficient to hold the conviction of the appellants under Section 201/149 of the IPC. 29 The injured Akash has stated that the accused persons assaulted him and the deceased Yuvraj and then, they dropped him to his house in the night and he gave them Rs. 500/-, but he has not stated that the appellants taken the dead body of the deceased and caused disappearance the evidence. From the evidence of this witness, it also appears that when the accused persons dropped him in the house, Vicky made a call in the mobile phone of his brother Vikas and informed that Yuvraj is being taken by the Crime branch police. When the accused persons taken him to his house, Yuvraj was with them. There is no sufficient evidence on record that the dead body of the deceased was thrown near the Talab by the accused persons. Though the prosecution tried to prove it by producing CCTV footage, but that itself has not been found proved in accordance with law. The evidence of Ravi Sharma (PW-18) and Devendra Rao Bhosle (PW-19) are not sufficient, as they could not be able to give the sufficient description about the data stored in the pen drive and DVDR of CCTV footage. The learned trial Court has found that the DVD is blank but the pen drive consists with the CCTV footage in which it has been seen that two persons have taken another person in the scooty and other scooty and bullet vehicle had also gone towards same direction is visible, but neither the number of the said scooty and the bullet motorcycle have been disclosed, nor the person who were in the vehicles have been identified. It has been observed that the persons have covered their faces and thus, the appellants are entitled for benefit of doubt with respect to the commission of offence under Section 201/149 of the IPC. 30 43. So far as the offence under Section 506 Part-II of the IPC (in two counts) is concerned, the offence has been duly proved by the evidence of Akash Banjare (PW-17). He specifically proved that the accused persons threatened them with dire consequences, if he disclosed the incident to his family members. The evidence of this witness with respect to threatening given by the accused persons and criminal intimidation by the threat to be cause death or grievous hurt could not be rebutted by the accused persons in his cross- examination. The learned trial Court has also rightly held the accused persons guilty for the offence under Section 506 Part-II of IPC on two counts for giving threatening with dire consequences to the deceased Yuvraj and injured Akash and thereby the conviction of the appellants under Section 506 Part-II of IPC on two counts are hereby affirmed. 44. Accordingly, the conviction and sentence passed by the learned trial Court against the appellants for the offence under Sections 302/149, 396/149 and 201/149 are set aside, and their conviction and sentence are modified in the following manner: Conviction by the trial Court Sentence awarded by the trial Court Conviction and sentence awarded by this Court. Section 148/149 IPC 03 years Rigorous Imprisonment (R.I.) Affirmed. Section 342/149 IPC (Twice) 01 year R.I. each for deceased Yuvraj and injured Akash (Separate) Affirmed. Section 323/149 IPC 01 year R.I. Affirmed. Section 302/149 IPC Life Imprisonment + ₹2,000 fine (In default: 01 year R.I.) Modified/altered for the offence under Section 304 Part-I 31 of the IPC and sentenced to R.I. for 10 years with fine of Rs. 2000/-, in default of payment of fine, further R.I. for 03 months. Section 396/149 IPC Life Imprisonment + ₹2,000 fine (In default: 01 year R.I.) Acquitted. Section 201/149 IPC 07 years R.I. + ₹2,000 fine (In default: 01 year R.I.) Acquitted. Section 506 Part-II IPC (Twice) 05 years R.I. each for deceased Yuvraj and injured Akash (Separate) Affirmed. All the sentences are directed to run concurrently. 45. With the aforesaid modification/alteration, all these appeals are partly allowed. 46. The appellants Abhijeet Lal @ Vikku @ Vicky, Abhishek Lal @ Lucky, Mukesh Lautre @ Mukku @ Monu, Kishan Tanti @ Lalu @ Kunal and Jay Kumar Yadav @ Ajju are in jail since 27.05.2020 and the appellants Lucky Naidu @ Khebda Lucky is in jail since 18.09.2020. they shall serve the sentence as awarded/modified by this Court. 47. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail, where the appellants are undergoing their jail sentence to serve the same on each of the appellants informing them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with 32 the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 48. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice ved